COLJI-Crim. 3-2:17.INT

If you find the defendant not guilty of assault in the second degree,

you should disregard this instruction and sign the verdict form to indicate

your not guilty verdict.

If, however, you find the defendant guilty of assault in the second

degree, you should sign the verdict form to indicate your finding of guilt,

and answer the following verdict question on the verdict form:

Was the defendant acting upon a provoked and sudden heat of

passion? (Answer “Yes” or “No”)

The defendant was acting upon a provoked and sudden heat of

passion only if:

1. the act causing the injury was performed upon a sudden heat of

passion,

2. caused by a serious and highly provoking act of the intended

victim,

3. affecting the defendant sufficiently to excite an irresistible

passion in a reasonable person, and

4. between the provocation and the assault, there was an

insufficient interval of time for the voice of reason and

humanity to be heard.

The prosecution has the burden to prove, beyond a reasonable doubt,

that the defendant was not acting upon a provoked and sudden heat of

passion. In order to meet this burden, the prosecution must disprove,

beyond a reasonable doubt, at least one of the above numbered conditions.

After considering all the evidence, if you decide the prosecution has

failed to meet this burden, you should find that the defendant was acting

upon a provoked and sudden heat of passion, mark “Yes” in the

appropriate place, and have the foreperson sign the designated line of the

verdict form.

After considering all the evidence, if you decide the prosecution has

met this burden, you should find that the defendant was not acting upon a

provoked and sudden heat of passion, mark “No” in the appropriate place,

and have the foreperson sign the designated line of the verdict form.